IN RE THE MARRIAGE OF LYNDA E I L E EN PENNISTON AND ROBERT LEROY PENNISTON Upon the Petition of LYNDA EILEEN PENNISTON , Petitioner - Appell ee , And Concerning ROBERT LEROY PENNISTON , Respondent - Appell ant .
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IN THE COURT OF APPEALS OF IOWA
No. 8-369 / 07-1949
Filed May 29, 2008
IN RE THE MARRIAGE OF LYNDA EILEEN PENNISTON
AND ROBERT LEROY PENNISTON
Upon the Petition of
LYNDA EILEEN PENNISTON,
Petitioner-Appellee,
And Concerning
ROBERT LEROY PENNISTON,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Wapello County, Annette J.
Scieszinski, Judge.
Robert Penniston appeals the alimony and trial attorney fee provisions of
the trial court‟s decree dissolving the parties‟ marriage. AFFIRMED.
David D. Dixon of Heslinga, Heslinga, Dixon & Moore, Oskaloosa, for
appellant.
Bryan J. Goldsmith of Webber, Gaumer & Emanuel, P.C., Ottumwa, for
appellee.
Considered by Sackett, C.J., and Huitink and Mahan, JJ.
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HUITINK, J.
Robert Penniston appeals the alimony and trial attorney fee provisions of
the trial court‟s decree dissolving the parties‟ marriage. We affirm.
I. Background Facts and Proceedings
Robert and Lynda Penniston were married in May 1984. Lynda filed for
divorce on February 12, 2007. At the time this case was tried in September
2007, Robert was fifty-three years of age.
He had worked full-time as a
production scheduler at Clow Valve for thirty-five years. In 2006 Robert earned
$59,998, including overtime compensation. Robert plans to retire at age sixtysix. His projected retirement includes $1635 in monthly Social Security benefits
and $1370.32 in monthly pension benefits. Robert also had $17,000 in his 401K
account.
Lynda was fifty-nine years, eleven months of age.
She has no
postsecondary education. After graduating from high school, Lynda worked parttime as a cashier and as a secretary. During the marriage, Lynda worked parttime as a merchandiser and as a bank representative.
She was currently
working as a part-time teacher‟s associate at a local school district. In 2006
Lynda earned $14,061. She has $4000 in her IPERS account. If Lynda retires at
age sixty-six, her projected income includes $665 in monthly Social Security
benefits and $366.36 in monthly IPERS benefits. Lynda also has the option of
electing to receive one-half of the amount of Robert‟s Social Security benefits.
The trial court‟s October 29, 2007 decree awarded Lynda half of Robert‟s
monthly pension benefit accrued during the marriage, effective when Robert
retires. It also provides:
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Lynda‟s present inability to be fully self-supporting is a
permanent condition.
She requires ongoing and permanent
support from Robert until such time---if ever---as she is able to
access retirement benefits or other income that would cover her
reasonable day-to-day living expenses and afford her a lifestyle
comparable to that she enjoyed in this marriage. The amount of
support Robert should pay must reflect his own ability to pay as
well as Lynda‟s anticipated needs and resources, the marital debt
burdens he will continue to bear, and his own living expenses. Also
of relevance, is the favorable income-tax treatment of alimony for
the payor. Under the sum of circumstances here, it is reasonable
for Robert to pay $1,000 per month to Lynda. Once she becomes
eligible for retiree benefits and the parties‟ relative financial
circumstances are known, the support amount should be reviewed.
Here, Lynda‟s permanent need for financial support is in the
nature of traditional alimony. Although she is presently incapable of
becoming self-supporting, she could attain additional work that
would loosen her tight financial circumstances some. At her age, in
her health situation, and in light of her low level of motivation, it is
not reasonable to expect her to retrain for a different occupation--thus negating rehabilitative alimony; and, her need is not predicated
upon any real economic sacrifices she made to advance Robert‟s
income-production ability.
(Citations omitted.) Finally, the trial court awarded Lynda $3000 in attorney fees.
On appeal, Robert contends both the amount and duration of the alimony
awarded are excessive. He also contends the record does not support an award
of attorney fees and the trial court abused its discretion by concluding otherwise.
II. Standard of Review
We review the provisions of a dissolution decree de novo. Iowa R. App.
P. 6.4. We examine the entire record and decide anew the legal and factual
issues properly presented and preserved for our review.
Reinhart, 704 N.W.2d 677, 680 (Iowa 2005).
In re Marriage of
We accordingly need not
separately consider assignments of error in the trial court‟s findings of fact and
conclusions of law but make such findings and conclusions from our de novo
review as we deem appropriate. Lessenger v. Lessenger, 261 Iowa 1076, 1078,
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156 N.W.2d 845, 846 (1968).
We, however, give weight to the trial court‟s
findings of fact, especially when considering the credibility of witnesses, but we
are not bound by them. Iowa R. App. P. 6.14(6)(g). Prior cases have little
precedential value; therefore, we must base our decision on the particular facts
of this case. In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983).
III. Alimony
Alimony is “„a stipend to a spouse in lieu of the other spouse‟s legal
obligation for support.‟” In re Marriage of Probasco, 676 N.W.2d 179, 184 (Iowa
2004) (quoting In re Marriage of Francis, 442 N.W.2d 59, 62 (Iowa 1989)). It is
not an absolute right; an award of alimony depends on the circumstances of the
particular case. In re Marriage of Anliker, 694 N.W.2d 535, 540 (Iowa 2005).
Although we review the trial court‟s award of alimony de novo, “we give that court
considerable latitude in making this determination.” Id. We will disturb the trial
court‟s alimony determination “only when there has been a failure to do equity.”
Id.
The trial court may award alimony after considering the factors in Iowa
Code section 598.21A(1) (2007). In re Marriage of Weinberger, 507 N.W.2d 733,
735 (Iowa Ct. App. 1993). These factors include: (1) the length of the marriage,
(2) the age of and physical and emotional health of the parties, (3) the property
distribution, (4) the educational level of the parties at the time of the marriage and
at the time the dissolution action is commenced, (5) the earning capacity of the
party seeking alimony, (6) the feasibility of the party seeking alimony becoming
self-supporting at a standard of living reasonably comparable to that enjoyed
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during the marriage, and (7) the tax consequences to the parties. Iowa Code §
598.21A(1)(a)-(g).
“An alimony award will differ in amount and duration according to the
purpose it is designed to serve.” In re Marriage of Hettinga, 574 N.W.2d 920,
922 (Iowa Ct. App. 1997). Traditional or permanent alimony “is usually payable
for life, or for so long as the dependent spouse is incapable of self-support.” Id.
Its purpose “is to provide the receiving spouse the support comparable to what
he or she would receive if the marriage continued.”
Id.
In appropriate
circumstances, the obligation to pay traditional alimony may continue after
retirement. See, e.g., In re Marriage of Bell, 576 N.W.2d 618, 623 (Iowa Ct. App.
1998) (holding wife was unable to work and needed husband‟s support even
after he retired), overruled on other grounds by In re Marriage of Wendell, 581
N.W.2d 197, 200 (Iowa Ct. App. 1998); In re Marriage of Hayne, 334 N.W.2d
347, 353 (Iowa Ct. App. 1983) (holding wife had no source of support other than
alimony and age (fifty-seven) was an impediment to substantial employment).
Based on our de novo review of the record, we conclude neither the
amount nor the duration of the alimony awarded is excessive, considering the
length of the parties‟ marriage, Lynda‟s age (fifty-nine years, eleven months), the
fact that Lynda will not receive half of Robert‟s pension benefits until Robert
retires, her limited education and resulting reduction in her earning capacity, as
well as the favorable tax consequences Robert will receive for paying alimony.
Like the trial court, we also conclude it would be premature to determine whether
Robert‟s alimony obligation will terminate upon his retirement. We accordingly
affirm on this issue.
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IV. Attorney Fees.
Attorney fees are not recoverable as a matter of right, but rest within the
discretion of the trial court and depend upon the parties‟ respective financial
needs and ability to pay. In re Marriage of Sprague, 545 N.W.2d 325, 328 (Iowa
Ct. App. 1996). Based on our review of the record, we are unable to say the trial
court‟s award of $3000 attorney fees to Lynda was an abuse of discretion and
affirm on this issue. We decline to award either party appellate attorney fees.
Costs are assessed to Robert.
AFFIRMED.
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